- I have perused the trial file namely Nyando SPM Criminal Case No. 456 of 2024: Republic –versus- Sarah Nyanga & Moses Matete and do note that indeed the copy of certificate of birth No. A1855154 dated 4.4.2019 reveals that the 1st Accused person was born on 15.2.2007 wherefore she is a minor aged 17 years and 5 months. The trial court thus erred in meting a custodial sentence of 20 years against the accused.
- In light of the said error and regard being heard of the provisions of Sections 238 of the Children Act 2022 the 1st accused person ought not to have been given a custodial sentence. This court takes cognizance of the fact that the 1st accused committed a heinous offence but it should not escape the mind of the court that the 1st accused was she herself being defiled by the 2nd accused given that she was herself a minor and incapable of engaging in consensual sexual intercourse. This was one minor whom the 2nd accused had assigned the role of parenting another minor.
- In exercise of the revisionary jurisdiction as clothed in this court by the provisions of article 165 (6) and (7) of the Constitution of Kenya 2010 I do hereby set aside the sentence of the 1st accused person.
- I direct that a probation officer Kisumu do file a social inquiry report in respect of the 1st accused within 7 days from the date hereof.
- In the interim I order that the 1st accused be placed in Kisumu Children’s Remand Home as she awaits sentencing.
- Mention on 30.7.2024.
Dated, Signed and Delivered this 23rd day of July, 2024.